| There is theoretically and practically importance distinguishing conditional intent and cognitive negligence.However,subjective state of mind,especially human will,is difficult to prove.Therefore the former question has become a classical proposition pursued by scholars.It is acknowledged that we can compare the factors between cognition and will in order to distinguish conditional intent from cognitive negligence.Unfortunately,not only fully awareness and prediction is various before the incident,the criterion of judgment between allowing and not wishing is also ambiguous.Besides,there are theoretical effects in both the "theory of intentional negligence" and the "theory of three subjective elements".Starting with difficult cases,there are three reasons why it is so complex to distinguish between conditional intent and cognitive negligence.Firstly,the conceptual responsibility,represented by the "will factor necessity theory",has a semantic limitation relative to the experience world.Secondly,though the approach of objective responsibility,represented by the "theory of will factors no to discuss",is an encouraging idea,the theory actually faces a series of problems,including objective standard lacking scientific basis,will factors unable to be simply replaced by cognitive factors.Lastly,subjective elements,which are originally difficult to prove,is protected by many rules of procedural law such as onus probandi and proof beyond reasonable doubt.There are three approaches to solve the problems mentioned above Firstly,from the perspective of methodology,with the help of other disciplines such as cognitive neuroscience,we should follow the subjective responsibility construction method from "fact to norm".Secondly,from the perspective of substantive law,we can draw on excellent legislation and theory of ancient and modern,in order to construct the type of responsibility.Thirdly,from the perspective of procedural law,the methods to solve the problems include,for example adjusting the burden of proof and standardizing the application of the criminal presumption system,reducing the standard of proof moderately and applying different subjective and objective proof standards.If we take typed responsibility of substantive law as an example to design a system,in the general theory of criminal law,we can conclude different types of crimes to improve the concepts of "intentional" and "negligence".In the theory of criminal law,we can comprehensively conclude the characteristics of controversial charges in subjective aspects.Besides,we should summarize the characteristics with experience and link characteristics to subjective state of mind,in order to raise the criminal presumption system to the stage of systematic application.In addition,there are some questions that need to be explained.Firstly,although the principle of strict liability solves the subjective problem once and for all,it is contrary to the principle of responsibility and should not be adopted.Secondly,the three approaches concept,which is raised in this article,interrelates with each other.Thirdly,in order to make substantial research findings,an interdisciplinary research method is required.Lastly,the ideas of this article,which refer to the three approaches concept and the systemestablishment,need to be tested in practice. |
